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HomeMy WebLinkAbout935636 **** Account No.: 5245717 Branch No.: 886 Loan Product: 70% CLTY Standalone RECEIVED 12/17/2007 at 2:51 PM RECEIVING # 935636 BOOK: 681 PAGE: 325 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY MJN 1000375-8250524571-4 ß?hflç/?Ç/ MORTGAGE THIS MORTGAGE SECURES OBLIGATORY FUTURE ADVANCES 000325 TillS MORTGAGE, as amended and extended (this IIMortgage'ï is signed to secure advances under a GMAC Home Equity Line ofCredít agreement (the IIAgreement'ï; it is dated as of November 14. 2007, and is made by BracUoty K Barfuss And Monica R Barfuss, Husband And Wife,_ who reside(s) at 630 Shooting Star Drive, Thayne:, Wyonùng 83127, as mortgagor(s), in favor ofGMAC Mortgage, LLC, a Delaware limited liability company t7k/a GMAC Mortgage Corporation, 100 Witmer Road, Horsham, PA 19044-0963 (herein "GMAC") and the Mortgage Electronic Registration Systems, me., P.O. Box 2026, Flint, MI 48501-2026 amd a street address of3300 S.w. 34th Avenue. Suite 101, Ocala, PL 34474 whose telephone nwnber is (888) 679-MERS ("J\.ŒRS") acting solely as nominee for GMAC and GMAC's successors and assigns under this Mortgage, as mortgagee. 7, ,. " Throughout this Mortgage, "we", "us" and "our" refer to mortgagor(s). "GMAC" refers to GMAC Mortgage, LLC flk/a GMAC Mortgage Corporation or its assigns. The "Account" refers to the Home Equity Line of Credít account established by GMAC under the Agreement. "Borrower" refers to ·eaeh person who signs the Agreement as borrower. The Agreement and this Mortgage, taken together, are called the "Credit Documents." '''Signer'' refers to any person (other than GMA C) who has signed a Credit Docwnent. DESCRIPTION OF SECURITY ""l By signing this Mortgage, we mortgage to MERS acting solely as a nominee for GMAC, subject to the tenns of this Mortgage, (a) the real estate located at 630 Shooting Star Drive, Thayne, County of Lincoln, State ofWyommg 83127, more fully described in Schedule A; (b) all buildings and other structures on the property; (c) aJJ rights we may have in any road, alley, easement or license regarding the property or in any mineral, oil, gillS or water which is part of the property; (d) aU rents and royalties from the property; (e) all proceeds of an! insurance on the property and all refunds of premiums on such insurance; (f) all proceeds of any taking (or ~hreatened taking) of the property by any govemmental authority ("condemnation ").. and (g) all fixtures on the ¡property at any ti¡œ (collectively, the "PropertY"ï. The Property includes all rights and interests which we now have or which we may acquire in the future. For example, iithe security mortgaged under this Mortgage is a leasehold estate and we subsequently acquire fee title to the froperty, the rights and interests granted to MERS acting soJlely as a nominee for GMAC by this Mortgage will include the fee title that we acquire. This Mortgage is also a Security Agreement under the Wyoming Uniform Commercial Code and we hereby grant MERS acting solely as a nominee for GMAC a secwity interest in the personal property described in (d) through (f) above. SECURED OILIGATIONS TIllS MORTGAGE SECURES OBLIGATORY FUTURE AllV ANCES. We have signed this Mortgage to secure payment to GMAC of up to $91,000.00, plus FINANCE CHARGES and any other amounts due GMAC under the AgIeement (the "TQtal Balance Outstanding'ï and to secure perfonnance by Borrower under the Agreement and our performance of the covenants of this Mortgage (collectively, the "Secured Obligations ''). PRIORITY OF ADVANCES The lien tj)f this Mortgage will attach on the date this Mortgage is recorded, with priority over subsequently recorded mortgages. The indebtedness evidenced by the Credit Documents is a revolving indebtedness. The Credit Documents provide that amounts may be advanced, repaid and readva.nced ftom time to time in accordance with the tenns and provisions of the Agreement Accordingly, the aggregate advances durin¡g the tenn of the credit Documents may exceed the Credit Limit. However, the Toml Balance Outstanding less FINANCE CHARGES and certain special charges at any time (the ''Earning Balance Outstallding'J shall never exceed the Credit Limit, except for advances made to protect the lien of this Mortgage. W ¡¡: agree that the lien and security title of this Mortgage shall not be deemed released or extinguished by operation of law \TIT implied intent of the parties if the Total Balance Outstanding is. zero as of the date of this Mortgage or is from time to time reduced to zero by payments made to GMAC. OMAC-WY ~Æ/'1 /' oI/YVV/5 JfÞ-. REPRESENTATIONS AND DUTIES 000326 We promise that, except for Pennitted Liens: (a) we own the Property; (b) we have the right to mortgage the Property to GMAC; and (c) there are no outstanding claims or charges against the Property. The tenn IIPennitted Lien" means (x) any mortgage, deed to secure debt or deed of trust ("security instrument'~ disclosed to GMAC by any Signer in applying for the Account, to the extent that the amount secured by such security instrument does not exceed the amount disclosed on such application; and (y) any liens, claims and restrictions. of ¡record that do not individually or collectively have a material adverse impact upon GMAC's security, the value of the Property or the Property's current use. Each of UIS gives a general warranty of title to GMAC. This means that each of us will be fully responsible for any losses whicll GMAC suffers because someonc has rights in the Property other than Pennitted Liens. We promise that we will defend our ownership of the Property against any claims of such right. We will neither take nor pennit any action to partition, subdivide or change the condition of title to all or any part of the Property. We will not amend any Pennitted Lien without GMAC's prior written conscnt. CERTAIN PROVISIONS OJ' THE AGREEMENT We understand that GMAC may, under certain circumstances set forth in the Agreement, cancel its obligation to make future advances and/or require repayment at once of the Total Balance Outstanding. Under the Agreement, FINANCE CHARGES are based on the "prime rate" published in The Wall Street Journal or in certain circumstances the "prime rate" published in The New York Times or a similar index selected by GMAC. The rate of FINANCE CHARGES changes on a daily basis as the index ør Uhe amount outstanding under the Agreeme11t increases or decreases. We understand that Borrower will not receive advance notice of such changes~ PROMISES AND AGREEMENTS We agree with GMAC as follows: 1. TIMELY PAYMENT. Except as limited by paragraph 10 below, Borrower shall pay when due all sums owed GMAC under the Credit Documents. 2. APPLICATION OF PAYMENTS. All payments shall be applied by GMAC as set forth in the Agreement. 3. MORTGAGES AND DEEDS OF TRUST; CHARGES; LIENS. We shall make pli'}'ments when due and perform all our obligations under any mortgage, deed of trust or other security agreement on the Property. We shall pey or cause to be paid when due all loans, taxes, assessments, charges, rmes, impositions and rents of any kind relating to the Property ("Assessmentsr~. Receipts evidencing such payments shall be delivered to GMAC upon its request. Except for Pennitted Liens, we sIBil not allow any encumbrance, charge or lien 00 the Property to become prior to this Mortgage. 4. HAZARD INSURANCE; CONDEMNATION. (III) We shall, at our cost, keep all improvements on the Property insured against loss caused by hazards included in the teml "extended coverage" or by other hazards GMAC may reasonably specify. Hazard insuran<te shall be in an amount equal to the lesser of (i) the full replacement cost of the building that is part of the Ptoperty or (ii) the amount of this Mortgage pl1ls the total amount of all Pennitted Liens; but never less than the amO\mt necessary to satisfy any coinsurance requirement contained in the insurance policy. We may cJboose the insuranclJ: company, subject to appmval by GMAC which may not be unreasonably withheld. All insurance policies and renewals must be in form acceptable to GMAC and JIRlSt include a standard mortgagee clause in favor of GMAC. GMAC shall have the right to hold the policies and renewals, subject to the terms of any Permitted Liens. If we pay the premiums directly, we shall provide GMAC with all renewal notiCes and, if requested by GMAC, all receipts for premiums. If policies and renewals are held by any other pC1S0n, we shalt supply copies of them to GMAC within ten calendar days after they are issued. In the event ofloss, we shall give prompt notice to the insurance company and GMAC. GMAC may file a proof of1oss id'we fail to do so promptly. (b~ The proceeds of any condemnation of the Property shall be paid to GMAC, su~iect to any Pennitted Liens. We shall give GMAC notice of any threatened condemnation and sign all documents required to cany out this paragraph 4. No condemnation settlement may be made without GMAC's prior written approvaJ which shall not be unreasonably withheld. -2- ~~. . I . - ~ / 000327 (,,) Subject to the terms of any Pennitted Lien, GMAC ma)! elect that the proceeds of any insurance or coDndemnation (after payment of all reasonable costs, expenses and attorneys' fees paid or incUtTed by GMAC and us) shall be applied to pay the Secured Obligations, to repair or reconstruct the Property, and/( [ pay us for our· Joss. In the event that such proceeds are not used entirely for repair and reconstruction, we shall provide GMAC with a new apprais3il or valuation of the Property, conducted by a person or entity. and in a form reasonably acceptable to GMAC, unless GMAC waives thís requirement in writing. The receipt of proceeds sha1l not cure or waive any default or notice of default under this Mortgage or invalidate any act done pursuamt to such notice. If the Property is abandoned by us, or if we fail to respond to GMAC in writing within 30 calendar days from the date notice of a proposed insurance or condemnation settlement is given to us, GMAC may settle the claim, collect the proceeds and apply them as set forth above. If the Property is acquired lby GMAC, all of our right" title and interest in and to any insurance or condemnation proceeds shall be~ome the property of GMAC to the extent of the sums secured by t1ùs Mortgage. 5. MAIN]ENANCE OF THE PROPERTY; LEASEHOLDS; CONDOMINRJMS; PLANNED UNIT DEVELOPMENTS. We shall: use, improve and maintain the Property in compliance wìth law; keep the Property in good repair and pay when due all repair costs; prevent waste, impairment and/or deterioration of the Property; and comply with Ube provisions of any lease of the Property. If the Property is part of a condominium project or a plalUled unit development, we shall promptly perform all of our obligations under the governing documents of the project or development. 6. PROTECTION OF GMAC SECURITY. We sball appear in and defend any action or proceeding which may affect the security of GMAC under this Mortgage or result in a violation of paragraph 3 above. If such an action is filed, we violalte this Mortgage or Borrowers violate the Agreement, 1hen GMAC may disburse funds and do whatever it believes necessary to protect the security of this Mortgage. In doing so, GMAC shall gi1ve us notice but it need not make demand or release us fÌ"om any obligation. Any amounts paid by GMAC under this paragraph 6, with FINANCE CHARGES at the variable rate in effect under the Agreement, shall be paid by us upon demand. Until paid by us, such amounts are secured by this Mortgage. GMAC is not required to incur any expense or take any action under this Mortgage and no action taken shall release us from any duty. 7. INSPECTION. Representatives ofGMAC may inspett the Property from rime to time. Except in an emergency, GMAC must first giv1: notice specifying reasonable cause for the inspection. 8. FINANCE CHARGES AFTER END OF ACCOUNT AND/OR JUDGMENT. To the. extent permitted by law, we agree that FJNANCE CHARGES after the end of the Account and/or after a judgment is entered sha1l continue to accrue at the rates and in the manner specified in the Agreement. 9. OUR CONTINUING DUTIES AND GMAC'S RIGHTS; WAIVERS. No waiver of any GMAC right under the Credit Documents shall release or limit our liability, Borrower's liability, or that of our successors or Borrower's successors, nor shall any waiver affect the lien or priority of this Mortgage. GMAC shall not be re,!uired to start proceedings against any successor or modify payment terms by reason of any demand made Joy us or any successor. No GMAC act or failure to a~t shall waive any right under thís Mortgage. All waivers must be in writing and signed by GMAC; they shaÞl apply only to the extent and with respect to the event specifred in the writing. Obtaiming insurance, or paying taxes, other liens or charges shall not be a waiver of GMAC's right to demand payment at once of the sums secured by this Mortgage in the event of a default under the Credit Documents. 10. SUCCESSORS AND ASSIGNS; JOINT AND SEVERAL LIABILITY; CO-SIGNERS. This Mortgage shill bind us and our respective successors and permitted assigns for the benefit ofGMAC and its successors and assigns. All agreements made by us or any successor are joint and several and may be enforced against each of us or any successor. Any Signer who does not execute the Agreement (a) is co-signing only to encumber that person's interest in the Property and to release all homestead and/or dower rig1l118, (b) is not personally liable under the Credit Documents, and (c) agrees that GMAC and any Signer may modify either Credit Document, without consent and without marlifying the interests of the rest of us under this Mortgage. -3- ~~~/J ~ 11. NOTICES. All notices shall be in writing. Except where applicable law requires otherwise: 000328 (a) GMAC notices shall be hand delivered or mailed by first class, registered or certified mail to the address of the Property or to such other address specified by the addressee in a written notice given to GMAC. Any GMAC nlrltice shall be considered given on the day it is deposited in the U.S. mail or is hand-delivered. (b) Our notices shall be maílcd to GMAC by first class, registered or certified mail to the address for such notices specified on our most recent monthly statement under the Agreement or to such other address specified by GMAC in a written notice given to us. Any such notice shall be considered given on the day it is received by GMAC. 12. GOVJ:RNING LAW. This Mortgage will be gO'lemed by federal and Wyoming law. If any provision is in"'I1lid, illegal, or unenforceable, this Mortgage shall be interpreted as if such provision had "llcver been included. 13. COPIES. We shall receive copies of the Credit Docuunents at the time they are signed or after this Mortgage is recorded. 14. EXERCISING REMEDIES. GMAC may exercise all of the rights and remedies provided by the Credit Doc\J11ll..'1lts or law, and any ofthese rights and remedies may be exercised individually or jointly, once or II number oftimes. 15. EVENTS OF DEF AUL T. (a) The ennts set forth in pa.ragraph l5(b) are Events of Default if and when GMAC gives any Signer notice of defaudt. We agree to notify GMAC promptly upon the happening of any event that would be an Event of Default under either Credit Document upon the giving of notice by GMAC. (b) After giving notice of default, GMAC may end the Account and/or demand repayment at once of the Total Balance Outstanding in any of the following events: (i) There has beem fraud or material misrepresentation by amy Signer in connection with the Account; (ü) BOITowers have failed to meet the repayment terms of the Agreement for any amount outstanding; or (ill) Any action or inaction by any Signer has adversely affected the Property or any right of GMAC in the Froperty; to the extent pemùtted by law, this will include, but not be limited to, any Signer (or any legal representative or successor of any Signer) agreeing 10 sell, transfer or assign or selling, transferring or assigning any interest in the Property, without the prior written consent of GMAC. (c) Notwithstanding any language in this Mortgage to the contrary, GMAC will not give notice of default unless pemútted by applicable law and GMAC will give us any grace period, right to. cure and/o.r reinstatement right required by applicable law. This parag][aph 15 is intended to give GMAC all rights permitted by applicable taw. 16. REl\IŒDIES. IF BORROWERS DO NOT REPAY AT ONCE THE TOTAL BALANCE OUTSTANDING WHEN DUE, GMAC MAY EXERCISE ANY REMEDY A V AJLABLE TO IT UNDER APPLICABLE LA W,INCLUDING FORECLOSURE. 17. FORECLOSURE BY ADVERTISEMENT. We hereby grant GMAC upon an Event of Default power to sell or cause the sale of the Property by advertisement and sale at public auction cr vendue and to convey the Pro.perty to the purchaser in the manner provided by law. 18. APPOINTMENT OF RECEIVER. Upon an Event of a Default or our failure to pay taxes assessed against the Pr~erty and/or insurance premiums cn the Property (which we agree shall constitute waste), GMAC shall be entitled to. the appointment of a receiver if permitted by law. 19. SATISFACTION OF MORTGAGE. Upon payment and discharge of all sums secured by this Mortgage and tennination of the Account, this Mortgage shall be void and GMAC shall satisfy this Mo.rtgage, file a discharge or release and pay any recording costs. 20. REQUEST FOR NOTICES. GMAC requests that copies o.f notices of defau1t, sale and 6oreclosure from the holder of any lien whiclil has priority over this Mortgage be sent to. GMAC at 100 Witmer Raad, Horsham, P A ]9044. -4- ~ útfÞ- 21. EXHIBITS, SCHEDULES AND RIDERS, ETC. The terms of any Exhibit, SchedlÙe or Rider attached to this Mortgage or execuùed and recorded with this Mortgage shaH be treated as if fully set forth in this Mortgage. All of the terms of the Agreement are made part of this Mortgage. 22. TIME OF ESSENCE. Time is of the essence ìn this Mortgage. 000329 23. ACTUAL KNOWLEDGE. For purposes of the Credit Documents, GMAC shall not be deemed to have actual knoDwledge of any fact until it actually receives notice as set forth in paragraph 11 or Wltil it receives written notice thereof from a source GMAC reasonably believes to be reliable. The date of receipt shall be detem1Íned by reference to the "Received" date stamped on such written notice by GtvlAC or its agent. 24. RELEASE. To the extent permitted by law, for ourselves and our successors and assigns, we hereby release and waive all rights under and by virtue of the homestead exemption laws of the State of Wyoming. 25. EXPE,NSES OF LITIGATION. In any proceeding to enforce any remedy of GMAC under the Credit Documents there shall be allowed and ìncluded, to the extent permitted by law, as additional indebtedness in the judgment Of decree, any court costs and reasonable expenses which may be paid or incurred by GMAC for attorneys; appraisers; documentary and expert evidence; stenographers; publication; surveys; abstracts of tide; title searches; title insurance policies; Torrens certificates; and similar items which GMAC reasonably considers nece&\ary in such proceeding or to evidence to bidders at any sale the true condition of the title to or value of the Pr.operty. Such expenses may be estimated to the extent they will be incurred after entry of the decree. In a~ foreclosure by advertisement, all expenses permitted by statute that GMAC incurs in protecting the Property, maintaining the lien of this Mortgage and foreclosing this Mortgage shall be included in the redemptilOn price and in the calculation of any deficienc}'. 26. CAP'IlONS; GENDER; ETC. The headings in this Mortgage are not to be used to interpret or define its provisions. In this Mortgage, the masculine gender includes the feminine andlor neuter, singular numbers includC the plurals, and plurals include the singular. 27. MERS~ Borrower unde¡¡5tands and agrees that MERS holds only legal title to the interests granted by Borrower ÎD1 this Mortgage, but, if necessary to comply wiith local law or custom MERS (as nominee for GMAC and G.'\fAC's successors and assigns) has the riglt: to exercise any or all of these interests, including, but IŒot limited to, the right to foreclose and sell the property; and to take any action required of Lender inc1udmg but not limited to, releasing and canceling tJùs Mortgage. (This space lelt blallk intentimla/ly) 1M~ vfI/Þ-"" By sigrùng this Mortgage, we agree to all of the above. WITNESSES: 000330 By: -::::::...._~~..., By: By: MORTGAGOR By: MORTGAGOR By: MORTGAGOR By: MORTGAGOR By: MORTGAGOR STATE OF WYOM1NG COUNTYO~~_ . /II,; i/£r-t Jh£). . ;J. (¡co '1 On the ~ day of &d~ ~ mlnJ J'Ctl &~~. before me personally came Bradley K Barfuss And Monica R Ba s. Husband And Wife. to me known to be the imdivldual(s) descnbed ill and who executed the foregoing instrument, and acknowledged that helshe/they executed the same. ,~.__.__' <"L ~ k .J LUANN EPPLER F . ary UNTYOf' STATE 0 ~ ~ CO WYOMING /7'td! County WyoI1Úng LINCOLN . , COMMISSION exPIRES MARCH 25. 2011 . ~ It,. ~~~ MyComm.Expires: U, ~7 / .~- I MORTGAGE Title No. THIS INSTRUMENT PREPARED RY Christina Odd GMAC Mortgage, LLC 00033:1 7 Carnegie Plaza Cherry Hill, Nl 08003 TO Recorded At Request of GMAC Mortgage, LLC When recorded mail to: ii~'DTEAMERICAN TITLE INSURANCE 'RS ADVANTAGE lJOO SUPERlOR AVENUE, SUITE 200 CLEVELAND, OHIO 44114 ATTN: FTlJ20 RESERVE TIllS SPACE FOR USE OF RECORDING OFFICE ~/3 uf~ EXHIBIT A 000332 SITUATED IN THE COUNTY OF LINCOLN AND STATE OF WYOMING: LOT 13 OF SHOOTING STAR SUBDIVISION, LINCOLN COUNTY, WYOMING, ACCORDING TO THAT PLAT FILED JULY 18, 1995 IN THE OFFICE OF THE LINCOLN COUNTY CLERK AS PLAT NO. 364 AND INSTRUMENT NO. 805315. Permanent Parcel Number: 3418-173-00-114-00 BRADLEY K. BARFUSS AND MONICA R. BARFUSS, HUSBAND AND WIFE, AS TENANTS BY THE ENTIRETIES I 630 SHOOTING STAR DRIVE, THAYNE WY!83127 Loan Reference Number 5245717/5245717 First American Order No: 13669464 I Identifier: FIRST AMERICAN LENDERS ADVANTAGE '1/1/11111/1111 II 111111 BARFUSS 13669464 WY FIRST AMERICAN LENDERS ADVANTAGE MORTGAGE 1/1/111111 1111 111111 1I1I/1Ii1l1l 1111 1111111 111111